Clark v. Mo Dept. of Corrections et al

Filing 8

REPORT AND RECOMMENDATION that 1 Complaint filed by Louis G. Clark be dismissed, pursuant to 28 U.S.C. 1915A, for failure to state a claim for which relief can be granted; 3 MOTION for preliminary injunction, MOTION for temporary restraining order filed by Louis G. Clark be denied. Objections to R&R due by 10/8/2008. Signed by Magistrate Judge William A. Knox on 9/18/2008. (skb)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION LOUIS G. CLARK, Register No. 990138, Plaintiff, v. MISSOURI DEPARTMENT OF CORRECTIONS, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. 08-4208-CV-C-NKL REPORT, RECOMMENDATION AND ORDER Plaintiff Louis G. Clark, an inmate confined in a Missouri penal institution, brought this case under the Civil Rights Act of 1871, 42 U.S.C. 1983, and its corresponding jur isdictional statute, 28 U.S.C. 1343. 1 Named as defendants are Missouri Department of Cor r ections, Dave Dormire, Valerie Campbell, Cindy Wansing, Rodney Kueffer, Paul Har per , Central Bank, Wells Fargo Bank Ohio, N.A., and American National Insurance Co. Plaintiff complains that his inmate account has been frozen, in violation of the Due Pr ocess Clause of the Constitution, and of wrongful conduct concerning his account. Plaintiff has requested leave to proceed without prepaying the filing fee and costs. 28 U. S. C. 1915(a). Having reviewed plaintiff's inmate account information, the court will gr ant him provisional leave to proceed in forma pauperis. However, pursuant to the Prison Litigation Reform Act, the court is required to screen prisoner cases and must dismiss a complaint, or any portion of the complaint, if satisfied that the action is frivolous, malicious, or fails to state a claim under which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A(b)(1) and (2). Additionally, under section 1915(g), if a prisoner, while incarcerated, has had three cases dismissed on any This case was referred to the undersigned United States Magistrate Judge for pr ocessing in accord with the Magistrate Act, 28 U.S.C. 636, and L.R. 72.1. 1 of these grounds, the court must deny leave to proceed under section 1915(a). The only exception to the successive petition clause is when the prisoner faces "imminent danger of ser ious physical injury." 28 U.S.C. 1915(g). Plaintiff, in essence, alleges state employees violated his due process rights under the F our teenth Amendment when they froze his inmate account. Generally, if a state provides adequate remedies to compensate individuals for wrongful property loss, there is no absence of due process. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) (intentional and negligent depr ivations of property not actionable under section 1983 if suitable state remedy); Parratt v. Taylor , 451 U.S. 527, 542 (1981). Missour i provides adequate remedies to redress property damages. Orebaugh v. Caspar i, 910 F.2d 526, 527 (8th Cir. 1990). Plaintiffs can sue in circuit court for replevin under Mo. S. Ct. R. 99.01 to 99.15, or they can bring a common-law claim for conversion. Hardesty v. Mr. Cribbin' s Old House, Inc., 679 S.W.2d 343, 347 (Mo. App. 1984). See also Knight v. M.H. Siegfried Real Estate, Inc., 647 S.W.2d 811, 814 (Mo. App. 1982). Plaintiffs also can recover for losses caused by the tortious acts of state employees, acting in their minister ial capacities. See Harris v. Munoz, 43 S.W.3d 384 (Mo. App. 2001); Jungerman v. City of Raytown, 925 S.W.2d 202 (Mo. Banc 1996); Jackson v. Wilson, 581 S.W.2d 39, 4243 (Mo. App. 1979); Mo. Ann. Stat. 105.711 (Supp. 2007). Plaintiffs who lack funds may seek to file and prosecute their claims as poor persons under Mo. Ann. Stat. 514.040 (West 2002). This statute gives state judges the discretion to waive costs and fees for indigent parties. Thus, plaintiff may be able to obtain relief in state cour t even if he lacks funds. Plaintiff's complaint should be dismissed because he has failed to state a claim under 42 U. S. C. 1983. Plaintiff is warned that if this case is dismissed as recommended, it will count against him for purposes of the three-dismissal rule set forth in 28 U.S.C. 1915(g). In light of the foregoing, plaintiff's motion for preliminary injunctive relief should be denied. On August 28, 2008, plaintiff filed a motion to compel. Plaintiff's motion is premature and is denied. 2 IT IS, THEREFORE, ORDERED that plaintiff's motion to compel is denied as pr ematur e. [7] It is further ORDERED that plaintiff is granted provisional leave to proceed in forma pauperis, pur suant to 28 U.S.C. 1915, on the basis of indigence. It is further RECOMMENDED that plaintiff's claims be dismissed, pursuant to 28 U.S.C. 1915A, for failure to state a claim for which relief can be granted. It is further RECOMMENDED that plaintiff's motion for preliminary injunctive relief be denied. [3] Under 28 U.S.C. 636(b)(l), the parties may make specific written exceptions to this r ecommendation within twenty days. The District Judge will consider only exceptions to the specific proposed findings and recommendations of this report. Exceptions should not include matters outside of the report and recommendation. Other matters should be addressed in a separ ate pleading for consideration by the Magistrate Judge. The statute provides for exceptions to be filed within ten days of the service of the r epor t and recommendation. The court has extended that time to twenty days, and thus, additional time to file exceptions will not be granted unless there are exceptional cir cumstances. Failure to make specific written exceptions to this report and recommendation will result in a waiver of the right to appeal. See L.R. 74.1(a)(2). As previously stated, the court has granted plaintiff leave to proceed in forma pauperis on a provisional basis. By doing so, the court has foregone collection of the $350.00 filing fee established for civil cases. Plaintiff is now warned that the court will attempt collection of the entir e $350.00 filing fee if plaintiff files another pleading of any type whatsoever in this case. See 28 U.S.C. 1915(b)(2) (provisions for deducting money from prisoner's account). Under section 1915(b), installment payments are permitted after the assessment and payment of an initial partial filing fee. Dated this 18th day of September, 2008, at Jefferson City, Missouri. / s/ William A. Knox 3 WILLIAM A. KNOX United States Magistrate Judge

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